State v. Rabe

Decision Date06 May 1980
Docket NumberNo. 79-1445-CR,79-1445-CR
Citation291 N.W.2d 809,96 Wis.2d 48
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. David W. RABE, Defendant-Respondent.
CourtWisconsin Supreme Court

David J. Becker (argued), Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-appellant.

John E. Tradewell (argued), Asst. Public Defender, William F. Bauer, Asst. Public Defender, on brief, for defendant-respondent.


This appeal, on certification from the court of appeals, stems from a criminal prosecution commenced by the filing of a criminal complaint on February 27, 1979, charging the defendant, David W. Rabe, with four counts of homicide by intoxicated use of a motor vehicle, contrary to sec. 940.09, Stats. The state seeks review of a pretrial order of the trial court consolidating the four counts charged in the information into a single count.

Two issues are presented on appeal. First, was the trial court's consolidation order appealable by the state either as a matter of right as a final order, pursuant to sec. 974.05, Stats., or as a permissive appeal from a nonfinal order under sec. 808.03(2). Second, did the trial court err by ruling that, where a single act of negligence causes multiple deaths, the state is limited to charging only a single count under sec. 940.09, Homicide by Intoxicated User of Vehicle.

In regard to the first issue, we conclude that this court has jurisdiction to hear the present appeal. Although we agree with the defendant that the trial court's order was not a final order appealable as a matter of right, we nevertheless conclude that the state may, pursuant to sec. 808.03(2), Stats., petition for leave to file an appeal in this criminal action. We also resolve the second question against the defendant, holding that, where multiple deaths result from a defendant's negligent operation of a motor vehicle while under the influence of an intoxicant, the state may charge separate counts of homicide under sec. 940.09 for each death. In accordance with these determinations, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

The following facts and procedural steps give rise to this appeal.

On the evening of February 23, 1979, the defendant, allegedly while intoxicated, drove his car past a stop sign in rural Dane county and collided in the intersection with a car driven by Randall R. Chambers. Four persons were killed in the accident: Chambers, a passenger in Chambers' car, and two passengers in the defendant's car.

The state filed a complaint charging the defendant with four counts of homicide by intoxicated use of a vehicle under sec. 940.09, Stats. Following the preliminary examination and bindover, an information and amended information were filed, the latter of which charged four counts of homicide under sec. 940.09.

The defendant has filed numerous motions, among which was a motion to consolidate the four counts in the information into one count. The trial court granted the motion, reasoning that the defendant's single act of negligently driving his vehicle while intoxicated could not be charged as a multiple offense. Thereafter, the court entered an order consolidating the four counts into a single count.

Concluding that the trial court's order was a final order appealable as a matter of right, the state filed a notice of appeal. To protect itself if the order were not an appealable final order, the state also filed a petition with the court of appeals for leave to appeal the order pursuant to sec. 808.03(2), Stats.

The court of appeals took jurisdiction of the case, but directed the parties to brief the question of whether the trial court's order was appealable by the state. After the briefs were filed, the court of appeals certified the case to this court pursuant to sec. (Rule) 809.61, Stats., stating that the case presented novel questions regarding Wisconsin criminal procedure and appellate jurisdiction. This court accepted the certification.

We turn first to the defendant's contention that the court of appeals and, in turn, this court 1 lack jurisdiction over this matter because the trial court's order was not appealable by the state either by right or by permission. The prosecution's entitlement to appeal in criminal cases, as a matter of right, is governed by sec. 974.05, Stats., which provides in pertinent part that:

"974.05 State's appeal. (1) Within 45 days of entry of the judgment or order to be appealed and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from any:

"(a) Final order or judgment adverse to the state made before jeopardy has attached or after waiver thereof . . . ."

The parties disagree on the definition of finality to be used in determining whether the trial court's pretrial consolidation order is an appealable final order. As we noted recently in State v. Jenich, 94 Wis.2d 74, 288 N.W.2d 114 (1980) at 116, and State ex rel. A.E. v. Cir. Ct. of Green County, 94 Wis.2d 98, 288 N.W.2d 125 (1980) at 126, determining what orders are final for purposes of appellate review poses recurring questions of statutory interpretation.

The defendant contends that the definition of a final order found in sec. 808.03(1), Stats., applies to the state's appeal rights under sec. 974.05, because the latter provision permits the state to appeal final orders "in the manner provided for civil appeals under chs. 808 and 809 . . . ." The defendant reasons that, if the "manner" in which the state may take an appeal is governed by ch. 808, then that chapter, and specifically sec. 808.03(1), must be used to determine what orders are final. In providing for appeals as of right to the court of appeals, sec. 808.03(1) defines a final order or final judgment as one "which disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding."

The state argues that the more specific state appeal provision, sec. 974.05, Stats., controls over the newer, but more general, sec. 808.03(1), appeal statute. Under this view, the specific test of finality set forth in sec. 808.03(1) did the order dispose of the "entire matter in litigation" is not incorporated by reference in sec. 974.05 to criminal appeals by the state. The state argues that the term, "final order," as used in sec. 974.05 has been given a judicial interpretation sufficiently expansive to cover the subject order.

In support of its argument, the state cites State v. Bagnall, 61 Wis.2d 297, 302, 212 N.W.2d 122 (1973), and State v. Antes, 74 Wis.2d 317, 321-22, 246 N.W.2d 671 (1976). In Bagnall, the court held that an order granting a motion to withdraw a guilty plea was a final order appealable by the state under sec. 974.05, Stats. Similarly, in Antes, the court held an order dismissing an information charging the defendant with armed robbery, but granting the state leave to amend the charge to robbery, was appealable by the state.

These cases were decided when the general appeal statute provided in part that, to be appealable, an order had to be a final order affecting a substantial right made in a special proceeding or a final order which in effect determined the action and prevented a judgment from which an appeal could be taken. See, sec. 817.33, Stats. (1975). In general, intermediate orders were reviewable only on an appeal from a final judgment or a final order in a special proceeding when they "involv(ed) the merits and necessarily affect(ed) the judgment, appearing upon the record." Sec. 817.34, Stats. (1975). It is clear that the decisions in Bagnall and Antes as to what constituted appealable orders under sec. 974.05 were compatible with the general definitions of appealability then in effect.

However, those rules were replaced by sec. 808.03 (1) Stats., effective August 1, 1978. This provision was in effect when the trial court entered its consolidation order on September 13, 1979. The new provision replaced the long and confusing list of appealable orders under ch. 817 with a simple dichotomy: Orders which "(dispose) of the entire matter in litigation" are appealable by right; all other orders are appealable only by permission. 2 The new definition of an appealable final order is obviously more stringent than its predecessor. Concomitantly, however, the new appeal practice establishes a uniform method and criteria for appealing all nonfinal orders. See, sec. 808.03(2) (criteria), 3 sec. 809.50 (procedure), 4 Stats. The rationale behind the new procedure is explained in the Legislative Council Note (1977) to sec. 808.03 as follows:

"The recommendation of the National Center for State Courts is that 'interlocutory trial court determinations should be reviewable only at the discretion of the . . .' appellate court. The purpose of the recommendation is to avoid unnecessary interruptions and delay in trial court proceedings caused by multiple appeals and to reduce the burden on the court of appeals of dealing with unnecessary appeals."

Neither logic nor precedent supports the state's contention that the finality of orders sought to be appealed under sec. 974.05, Stats., should be tested by a standard less rigorous than the general definition for final orders set forth in sec. 808.03(1). This statement is especially true in light of our conclusion that, in criminal as well as civil cases, a party may avail itself of the permissive appeal procedure set forth in sec. 803.03(2). Moreover, whether the order in this case is tested under the new provision, the old provision, or the asserted case-law definition, it is not an appealable final order.

The order appealed from in this case was labeled by Judge Boll as a consolidation order, which had the effect of merging the four homicide counts charged in the information into a single count alleging four victims. The state argues that...

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